3.3 Is translation allowed?

Protecting Business Innovations Via Copyright
Watch Course Overview: https://youtu.be/mUja4iwbrTE
Intellectual property rights (IPR) has a great impact on innovation development and society. In Science, Engineering, and Business, we seek to create wealth through innovation in products, designs, manufacturing processes, and business systems or models. However, innovation leaders often FAIL to benefit from their discoveries and inventions when they are unable to adequately protect those innovations.
This course provides learners with an understanding of Copyright law and how it can be used to protect business innovation. The course focus is on protecting innovations with copyright as one of several tools that can be used by companies and individuals to protect creative innovations. In additional to learning about how copyright works in theory, we will also discuss situations in which copyright might not be effective in protecting innovations, and will focus on the legal issues involved from a practical business perspective rather than from a purely legal viewpoint. This course is one part of a four course series focusing on protection of business innovations using copyright, patent, trademark and strategy, and these four courses may be taken in any order that is most beneficial to students interested in learning about protecting innovation.

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The course is really well presented. The discussion videos are awesome!

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Apr 13, 2019

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I wish if the written notes or powerpoint were available.

从本节课中

Derivative Work & Parody

This will explore other rights within Copyright Law. I will introduce derivative works and parody with lots of interesting examples like the Beach Boys, Weird Al and Annoying Orange. We encourage you to interact with the examples by going to YouTube or other suggested sites to view them as you go through the lecture videos.

教学方

Theodore Henry King CLARK

Associate Professor

脚本

An important question about a derivative work is, are translations allowed? This is actually a complicated question because the answer is probably no, but maybe yes depending on the country or the context. So we're going to look at derivative scopes work and the scope over time, because it wasn't always the same in the past. In fact, in the past in the United States and in some other countries, translations were not considered a derivative work. They were considered what's called a transformative work, because it's not the same expression. It's not the same words, it's not the same way of saying things. Now you could argue it is the same expression, it's just in a different language. But the other thing that they argued when saying, that really, it shouldn't be a derivative work, is that it's not the same audience. So when you look at economic impact you would say, well look, this work in Chinese is not going to appeal to the same people who would read it in French. Because, I mean, there are some Chinese people who speak French and some French people who can read Chinese, but the overlap is not very big. And so it's not the same audience. So the economic harm, minor. The artistic expression, maybe a different way of saying things. Is it derived from the original? Of course. So in terms of modern definitions, this is derivative work. So, in 1853 in the US there was a classic case in US history where the court said no, translations create a new work. It's not a derivative work and therefore, it's a transformative or a new work. And therefore, it's allowed either as fair use, or as a transformative work. And it's not a violation to import a book from another country, and translate it, and sell it as a new work. Well, that was overturned and the US law today is different. So today, US law is much stricter, in fact it's so strict the legislation has enacted things that say translation is not allowed, that's a derivative work. So that's pretty clear. But they didn't go on. And they say, not only is translation not allowed, but abridgments are not allowed. That's a derivative work. Abridgement means to make something shorter or to paraphrase or summarize derivative work. Recordings are not allowed. You can't read a book and make an audio book without permission, because that's derived from the original. So, that's a derivative work. You can't take cheap music and record it because that's a derivative work unless you have permission or you pay money to the copyright owner. Films are derivative works. Arrangements are derivative works, if you say I like this song, but I'd like to arrange it differently. You may get a copyright on your new arrangement, but it's derived from a based on the original work and so you still have to pay money to the original copyright holder. Even if you made your own arrangement of the work. Condensations, sort of like abridgments. But condensations are shortened versions. Like a Reader's Digest Condensed Book. Reader's Digest Condensed Book, you may buy the book in a version that is one fourth the length of the original. It has most of what's in the original. It's just missing a lot of the details. I mean, you could read a work by Dickens and condense it down to 10% of its length, and since Dickens was paid by the word and love to use a lot of words. You might be able to find a Reader's Digest Condensed version or some other condensed version. A CliffsNotes of a book that's much shorter, but that's a derivative work as well. It's based on the original so you can't do it without permission unless you have some exceptions in the case of Dickens, copyright has expired so you can do that. Or fictionalizations. Creating something that's a story based on some other story or recreation, that's again a derivative work based on the original work. A created fiction as a fictionalization of that work. So US law and also dramatization. Making something more dramatic, or making a play out of something. Again, derivative work. Can't do, not under US law. Now, US law now says any work or form in which a work may be recast, transformed, or adapted is not allowed. So they go on to say, all of these things are prohibited on any other form than which you may transform our work. So if it's in any way based on another work, it's a derivative work. But not all countries have this same definition. And so, the issue is whether translation is allowed in other countries. And that becomes an important issue. With China today, translation is a different issue, it's a different challenge. And there's conflicting laws on regulations, registration, and translation. In China, translation is considered fair use, and translation is also considered a transformation of the work. The work in Chinese is not the same as the work in English. It's for a different audience, it's a different expression, it's a different work of art. And so the Chinese interpretation is closer to the US interpretation in 1853 than it is to US law today. So it's a transformative fair use. Other international differences with China or other countries are moral rights. In the US, moral rights are very, very limited. In Europe, moral rights are very well-protected. What are moral rights? Moral rights give the author the long-term right to object to some usage, which would be against their nature or character or moral values. So for example, you write a song that's a beautiful song about peace and love, but it's got a good meat, good beat to it. And the military in France, decides this would be a good recruiting song. They go to a studio, who bought the rights to this to promote it for you, and they say, can we buy the rights to use this for military recruiting as a song, we're going to change some lyrics and make it a derivative work? And the studio says, sure, for the money you're paying, you can do anything you want. The author says no, I'm anti-war, I'm anti-violence, or I'm anti-eating animals, you can't sell my song to McDonald's to promote Big Mac. I'm a vegetarian. It's against my moral rights. In America, you sold your song, you got no rights. No moral residual right stay with the author, but in Europe, moral rights exist. And in China, there are some moral rights. The money that you get in judgement is a big difference from one country to another. Huge differences in the amount of judgments for various types of cases. Derivative works are not the same from country to country, with the biggest difference being China saying, if it's not in Chinese we don't know what it is. We'll honor your copyright, but only in foreign languages. If you write it in Chinese, that looks like a new work to us. That's a different world, different market, different audience, different work. So derivative works may be different, and sometimes what's parody may also be different from country to country. And what's fair use in general may be different from one country to another. A judge may not see the same humor from one country to another. Humor doesn't always translate. Or a judge may not see the same right of free speech, or may not see the same economic impact. So that's it for our discussion of international differences and the issues of whether or not you can translate whether it creates a derivative work and whether you can get a judgement and how much could the judgements be in different countries. Thank you. [MUSIC]